Morin v. U.S., s. 74-1291
| Decision Date | 07 August 1975 |
| Docket Number | 74-1345,Nos. 74-1291,s. 74-1291 |
| Citation | 522 F.2d 8 |
| Parties | Joseph H. MORIN, Jr., Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America, Appellee, v. Joseph MORIN, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Joseph H. Morin, Jr., appellant pro se in Nos. 74-1291 and 74-1345.
Brian P. Gettings, U. S. Atty., for appellee in Nos. 74-1291 and 74-1345.
Before HAYNSWORTH, Chief Judge and RUSSELL and FIELD, Circuit Judges.
These are consolidated appeals from orders of the District Court denying Joseph H. Morin, Jr.'s petition to have his sentence for armed robbery vacated under 28 U.S.C. § 2255 and motion for a new trial pursuant to Rule 33, Fed.R.Crim.P. The petitions are virtually identical in substance, alleging the following defects in Morin's conviction: (1) the District Court denied his request for new counsel even though his attorney showed no interest in the case and was more friendly to a codefendant who testified against him; (2) the principal evidence against him, the testimony of his codefendant, was perjured; (3) the District Court erred by refusing the jury's requests that portions of the testimony be read back to them; (4) his attorney demonstrated his antagonism by recommending that an appeal would be fruitless and by refusing to furnish to Morin his copy of the transcript; and (5) an individual who was convicted of perjury before a grand jury for concealing his knowledge of the events of the offense would now testify that Morin was innocent of the charge. These appeals followed the District Court's denial of relief.
We note initially that we are without jurisdiction to entertain Morin's appeal from the denial of his motion for a new trial in case number 74-1345. The District Court denied Morin's motion on February 26, 1974. Rule 4(b) of the F.R.A.P. provides that denials of motions for new trials must be filed within ten days. In the absence of extraordinary circumstances, this rule is considered mandatory and jurisdictional. E. g. United States v. Mathews (3d Cir. 1972) 462 F.2d 182. Morin thus had until March 8, 1974 to submit his notice of appeal. His notice of appeal was not filed until March 11, 1974. While Rule 4(b) permits the District Court to extend the period for an additional 30 days upon a finding of excusable neglect, no such finding was made. Rule 26(b) specifically prohibits this Court from undertaking on its own motion to extend the time otherwise permitted for filing a notice of appeal.
Proceeding to a consideration of the merits of Morin's appeal in case number 74-1291, we conclude that claims 1 and 4 were properly denied. We find nothing in the record to demonstrate that the trial court committed constitutional error by denying Morin's request for a new attorney. Our review of the transcript of Morin's trial reveals that his attorney ably and effectively...
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